Smt. Radha And Others vs State Of U.P. And Anr.
2013 Latest Caselaw 6083 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved.
 
AFR
 
Case :- CRIMINAL REVISION No. - 145 of 2011
 

 
Revisionist :- Smt. Radha And Others
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Revisionist :- Radhey Shyam
 
Counsel for Opposite Party :- Govt. Advocate,Mool Chandra Maurya,Pravin Kumar Singh,V.K.Rai
 

 
Hon'ble Bharat Bhushan,J. 

1. This criminal revision is directed against the order dated 14.10.2010 passed by Judicial Magistrate, Vth Farrukhabad, District Farrukhabad in Case No. 162 of 2010, (Vijay Kumar Vs Smt Radha and others), whereby the court below has summoned the revisionists to face the trial for the offence under Section 406 IPC.

2. Brief facts of the case are that the marriage of opposite party no. 2 namely Vijay Kumar was solemnised with daughter of revisionist no. 1 namely Sonam Kashyap on 21.11.2009 as per Hindu rites and customs. On 26.2.2010 on the eve of Holi festival, Radha Devi, mother in law (revisionist no. 1), Ankit Kumar, brother in-law (revisionist no. 3) and Ram Kishore, grand father-in-law (revisionist no. 2) of opposite party no. 2 came to his house and requested him to perform the 'vidai' of Smt Sonam Kashyap. The family of opposite party no. 2 performed the vidai of Smt Sonam Kashyap. They also gave several articles of ornaments and Rs. 5000/- cash to her daughter-in-law.

3. Thereafter, Vijay Kumar, husband of Sonam Kashyap, went to her in-laws' house several times with a request to send his wife back with him but the revisionists did not send his wife. On 26.8.210, opposite party no. 2 again went to her in-laws' house but the revisionist no. 1 allegedly refused to send her daughter Smt Sonam with him and also declined to return the ornaments given to her daughter by the family members of opposite party no. 2 at the time of vidai.

4. It is further alleged that on 30.8.2010, Smt. Radha, Ankit Kumar and Ram Kishore came to the house of complainant/opposite party no. 2 and asked the family members of opposite party no. 2 to send Vijay Kumar with them otherwise they will neither return the articles of jewellery etc given to his wife nor they will send back his wife. The revisionists abused and threatened opposite party no. 2. On hearing the noise, people of the vicinity gathered and the revisionists fled from the spot after threatening to get him implicated in a false case. It is also stated that the opposite party no. 2 reported the incident to the police station but his report was not entertained. Aggrieved by the inaction of the police, he filed the complaint in the court of learned Magistrate on 8.9.2010.

5. The learned Magistrate after going through the complaint and recording the statements of the complainant and his witnesses under Section 200 and 202 Cr.P.C., summoned the revisionists to face the trial under Section 406 IPC vide order dated 14.10.2010. It is this order which is subject matter of challenge before this Court.

6. Learned counsel for the revisionists has challenged the impugned summoning order on the ground that the allegations levelled against the revisionists and the statements recorded under Section 200/202 Cr.P.C of the complainant and his witnesses do not disclose the ingredients of any offence against them and the order impugned has been passed in a mechanical manner therefore, the same is liable to be quashed by this court.

7. He further submits that the present complaint is the counter blast to the application dated 31.8.2010 moved by the daughter of revisionist no. 1 to the Superintendent of Police, District Auraiya against the opposite party no. 2 and his family members in respect of his mal-treatment and torture by her in-laws.

8. To the contrary, learned counsel for the complainant submitted that the impugned summoning order is just and proper. The court below after going through the allegations of complainant and recording the statements of the complainant and his witnesses rightly summoned the revisionists to face the trial under Section 406 IPC.

9. Heard Sri Radhey Shyam, learned counsel for the revisionist, Sri Lav Kush Kumar Sharma, learned counsel for the opposite party no. 2, learned AGA and perused the record.

10. The sole question for consideration before this court is whether the refusal to return the ornaments, sarees and other articles, given to the daughter of revisionist no. 1 at the time of 'vidai', would amount to an offence of criminal breach of trust?

11. To decide this contentious issue, it would be relevant to refer Section 405 IPC, which defines the Criminal Breach of Trust is as under:-

"405. Criminal Breach of trust: Whoever being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in, which such trust is to be discharged or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other Person so to do, commits criminal breach of trust."

12. Perusal of the aforesaid quoted provision would clearly show that the offence of criminal breach of trust defined in Section 405 IPC and punishable under Section 406 IPC requires the following ingredients to be completed before constituting an offence of Criminal Breach of Trust, they are as under:

(1) Entrusting any person with property or with any dominion over property,

(2) the person entrusted, (a) dishonestly mis-appropriating or converting to his own use that property or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation-

(i) of any direction of law prescribing the mode in which such trust is to be discharged or

(ii) of any legal contact made touching the discharge of such trust.

13. Thus, it is clear that for constituting the offence of criminal breach of trust, the necessary ingredients are that any property should either be entrusted to a person or the person be put in dominion over that property. The person so entrusted with the property or having the dominion over it, must be shown to have misappropriated it or to have converted that property to his own use or has dishonestly used or disposed of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do.

14. In Smt. Rashmi Kumar vs Mahesh Kumar Bhada (1997) 2 Supreme Court Cases 397, it has been held by the Apex Court that gifts received by the married women in course of her marriage would fall within the definition of 'Stridhan' property when gifts are made by her husband or her parents or by relatives either of her husband or of his parents. It is immaterial whether it is made before the marriage or at the marriage or after the marriage. These gifts are at the women's own disposal. She may spent, sell, divide or give it away of her own volition. It is her absolute property with right to use at her own pleasure. Husband and his family members have no control over her 'Stridhan' property. Relevant portion of the judgement of the Apex Court is reproduced herein below:-

"The texts of Katyayana and Vyasa have been explained by other commentators as including gifts received by her from her husband, and from others after her marriage. The decisions of the courts have taken the same view. Provided the gift is made by her husband or her parents or by relatives either of her husband or of parents, it is immaterial whether it is made before marriage, at marriage or after marriage. It is equally her saudayika. In other words, saudayika means all gifts and bequests from relations but not gifts and bequests from strangers. Saudayika of all sorts are absolutely at a woman's own disposal. She may spend, sell, devise or give it away at her own pleasure. In support of that conclusion, footnote No.6 cites several decisions including Venkata Rama v. Venkata Suriya [(1880) 2 Mad 333] and Muthukaruppa v. Sellathammal [(1916) 39 Mad 298] etc. It is stated thereafter that her husband can neither control her in her dealings with it, nor use it himself. But he may take it in case of extreme distress, as in a famine, or for some indispensable duty, or during illness, or while a creditor keeps him in prison. Even then he would appear to be under at least a moral obligation to restore the value of the property when able to do so. What he has taken without necessity, he is bound to repay with interest. This right to take the wife's property is purely a personal one in the husband. If he does not choose to avail himself of it, his creditors cannot proceed against her properties. The word `take' in the text of Yajanavalkya means `taking' and `using'. Hence if the husband taking his wife's property in the exceptional circumstances mentioned in the text does not actually use it, the wife still remains its owner and the husband's creditors have no claim against the property. A woman's power of disposal, independent of her husband's control, is not confined to saudavika but extends to other properties as well. Devala says: "A women's maintenance (vritti), ornaments, perquisites (sulka), gains (labha), are her stridhana. She herself has the exclusive right to enjoy it. Her husband has no right to use it except in distress...". In "N.R. Raghavachariar's "Hindu law - Principles and Precedents" [8th Edn.] edited by Prof. S. Venkataraman, one of the renowned Professors of Hindu law para 468 deals with "Definition of Stridhana". In para 469 dealing with "Sources of acquisition" it is stated that the sources of acquisition of property in a women's possession are: gifts before marriage, wedding gifts, gifts subsequent to marriage etc. Para 470 deals with "Gifts to a maiden". Para 471 deals with "Wedding gifts" and it is stated therein that properties gifted at the time of marriage to the bride, whether by relations or strangers, either Adhiyagni or Adhyavahanika, are the bride's stridhana. In para 481 at page 426, it is stated that ornaments presented to the bride by her husband or father constitute her Stridhana property. In para 487 dealing with "powers during coverture" it is stated that saudayika meaning the gift of affectionate kindered, includes both Yautaka or gifts received at the time of marriage as well as its negative Ayautaka. In respect of such property, whether given by gift or will she is the absolute owner and can deal with it in any way she likes. She may spend, sell or give it away at her own pleasure.

It is thus clear that the properties gifted to her before the marriage, at the time of marriage or at the time of giving farewell or thereafter are her stridhana properties. It is her absolute property with all rights to dispose at her own pleasure. He has no control over her stridhana property. Husband may use it during the time of his distress but nonetheless he has a moral obligation to restore the same or its value to his wife. Therefore, stridhana property does not become a joint property of the wife and the husband and the husband has no title or independent dominion over the property as owner thereof."

15. Coming back to the facts of the instant case, it is admitted that marriage of the daughter of the revisionist no. 1 was solemnized with opposite party no. 2 on 21.11.2009. It is on 26.2.2010, vidai ceremony of wife of opposite party no. 2 was performed and she was given some ornaments and other articles in the form of gift by the family members of opposite party no. 2.

16. It is alleged that despite repeated requests of the complainant his wife i.e. daughter of revisionist no. 1 was not allowed to come back at her matrimonial home. Also revisionists did not return the gifted ornaments, given to his wife at the time of vidai. However, perusal of the record reveals that the complainant and his family members have been accused of torturing and harassing the daughter of the revisionist no. 1 for dowry and when the relations between the husband and wife became strained the daughter of the revisionist no. 1 filed a complaint on 31.8.2010 against her in-laws and complainant/opposite party no. 2. Thereafter, the present complaint under Section 406 IPC was lodged by the complainant/opposite party no. 2 for the gifted articles.

17. Since, in view of the decision of 'Rashmi Kumar' (Supra), the properties gifted to a wife before the marriage, at the time of marriage or at the time of giving farewell or thereafter are exclusively her stridhana properties with all rights to use at her own pleasure, the husband has no control over such property. These properties are stridhan properties of the wife of the complainant given to her at the time of her 'vidai'.

18. This stridhan exclusively belongs to the daughter of revisionist no. 1. Neither the revisionists nor the complainant/opposite party no. 2 are entitled of this property. Revisionists cannot give this property back to the complainant/opposite party no. 2 as even they have no control over this property.

19. In view of above, I find that none of the ingredients of offence defined under Section 405 IPC and punishable under Section 406 IPC are made out. The Criminal Revision is allowed. The impugned summoning order dated 14.10.2010 passed by the Judicial Magistrate, Vth, Farrukhabad, District Farrukhabad in Case No. 162 of 2010 is hereby quashed.

Office is directed to send the copy of this order to the court below within two weeks.

order Date :- 26.09.2013

RavindraKSingh